P.Prasanth v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.04.2023 Coram THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR H.C.P. No.305 of 2023 P.Prasanth .. Petitioner Vs.
1.
The State of Tamil Nadu Rep. by its Chief Secretary to Government (Home) Prohibition and Excise Department Fort St.George, Chennai-600 009.
2.
The District Collector and District Magistrate, Chengalpattu District, Chengalpattu.
3.
The Superintendent of Police, Chengalpattu District, Chengalpattu.
4.
The Inspector of Police, Chengalpattu Taluk Circle Police Station, Chengalpattu District.
5.
The Superintendent of Prison, Central Prison II, Puzhal, Chennai - 66.
.. Respondents Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of habeas corpus to call for the records pertaining to CPT No.39/2022 dated 24.07.2022 on the file of the second respondent herein and set aside the same and direct the respondents herein to produce the petitioner Prasanth, Son of Periyan, 1/9
aged 24 years, now confined in the Central Prison, Puzhal, Chennai before this Court and set him at liberty.
For Petitioner :
Mr.Charles Kamalesh M.Appaji For Respondents :
Mr.R.Muniyapparaj Additional Public Prosecutor Assisted by Mr.M.Sylvester John
ORDER
[Order of the Court was made by M.NIRMAL KUMAR, J.] This order will now dispose of captioned 'Habeas Corpus Petition' ('HCP' for the sake of brevity).
2.
When the captioned HCP was listed in the Admission Board, this Court vide order dated 01.03.2023 admitted the captioned HCP and issued Rule nisi. A scanned reproduction of the order dated 01.03.2023 is as follows:
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3. Learned counsel for petitioner predicated his campaign against the impugned detention order on one short point and that is, in the Arrest memo it is recorded that the arrest of the detenu was informed to his brother one Elumalai through his mobile bearing No.7867875836 by way of SMS. He further submitted that this would not be a communication of arrest, more so, there is no statement recorded from the said Elumalai to confirm as to whether he received the arrest intimation, thereby hampered the right of the detenu to make an effective representation.
4. The learned Additional Public Prosecutor submitted that the petitioner has not made any such representation now putforth before this Court. Hence, the above contention may not be considered.
5. The Hon'ble Division Bench of this Court in the case of "Akilandeswari Vs. State, rep. by Secretary to Government, Home, Prohibition and Excise Department, Chennai-600009, reported in 2008 (3) MLJ (Crl.) 744", held as follows: "5. Though the learned Additional Public Prosecutor has made an attempt to justify by stating 5/9
that the family members were intimated through telegrams, he has not placed any material to satisfy this Court as to whether any telegram was sent and the same was acknowledged either by the family members or relatives of the detenu. A right of intimation to the relatives or family members of the detenu encompasses itself the fundamental right guaranteed under Article 22(5) of the Constitution of India to make a representation to the Detaining Authority or the State Government, as the case may be. In the event the arrest is not intimated, the detenu would not be in a position to make any such representation and in that context, failure on the part of the Detaining Authority would amount to deprivation of the right of the detenu to make an effective representation guaranteed under Article 22(5) of the Constitution of India.
On the facts of this case, a specific averment has been made that the intimation was not given. We also find that the said averment has not been controverted in the Counter Affidavit. Though the learned Additional Public Prosecutor submitted that the family members of the detenu were informed of the arrest through telegram, there are no materials placed before us to substantiate the said contention. Further, the copy of the telegram has also not been furnished to the detenu. In the absence of the same, we are unable to accept the contention of the learned Additional Public Prosecutor that the family members or the relatives of the detenu were informed of the arrest. Under these circumstances, the detention order is vitiated."
6. Following Akilandeswari Case (cited supra), this Court in the case of "Ganesh @ Lingesan Vs. State of Tamil Nadu and another reported in 2012 (3) MWN (Cr.) 315 DB", in paragraph No.10, held as follows:
"10. "No man shall be deprived of his life and liberty 6/9
except by procedure established by law" has been guaranteed in Article 21 of the Constitution of India. His right to be informed of the arrest is his basic human right. Curtailment of his personal freedom in pursuance of a preventive detention law though has the constitutional sanction (see Article 22(3)(b) of the Constitution of India), it is conditioned by many constraints, one of which is a chance for him to make representation as against his detention. (see Article 22(5) of the Constitution of India). If his arrest is not informed to his dear and near ones, who could make representation as against the detention order on his behalf, he cannot exercise the right given to him under Article 22(5) of the Constitution of India. In this constitutional perspective, the argument of the Respondent that by nonsupply of a copy of the telegram informing his arrest no prejudice is caused to the detenu is too big a pill to gulp."
7. In this case, the arrest intimation is through Short Message Service (SMS). The reason given is not acceptable, proper intimation has to be given to the detenu and the detenu must know the reason for his arrest. Further, right of the detenu to make an effective representation qua the preventive detention order is a Constitutional safeguard ingrained in Clause (5) of Article 22 of the Constitution of India. In the light of the narrative thus far, this Constitutional safeguard is hampered. The sequitur is, the impugned preventive detention order deserves to be dislodged.
8. Ergo, the sequitur is, captioned HCP is allowed and the 7/9
detention order dated 24.07.2022 bearing reference CPT No.39/2022 made by the second respondent is set aside and the detenu Thiru.Prasanth, male, aged 24 years, son of Thiru.Periyan is directed to be set at liberty forthwith unless required in connection with any other case. There shall be no order as to costs. (M.S.,J.) (M.N.K.,J.) 17.04.2023 Index : Yes / No mmi P.S: Registry to forthwith communicate this order to Jail authorities in Central Prison, Puzhal, Chennai. To 1.
The Chief Secretary to Government (Home) Prohibition and Excise Department Fort St.George, Chennai-600 009.
2.
The District Collector and District Magistrate, Chengalpattu District, Chengalpattu.
3.
The Superintendent of Police, Chengalpattu District, Chengalpattu.
4.
The Inspector of Police, Chengalpattu Taluk Circle Police Station, Chengalpattu District.
5.
The Superintendent of Prison, Central Prison II, Puzhal, Chennai - 66.
6.
The Public Prosecutor, High Court, Madras.
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M.SUNDAR, J., and M.NIRMAL KUMAR, J., mmi H.C.P.No.305 of 2023 17.04.2023 9/9